Goodey v Clarke - [2002] VSC 246

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8867 of 2001

David Goodey	Appellant
v
Anthony Clarke	Respondent

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JUDGE:	Bongiorno J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 June 2002
DATE OF JUDGMENT:	12 June 2002
CASE MAY BE CITED AS:	Goodey v Clarke
MEDIUM NEUTRAL CITATION:	[2002] VSC 246	1^st revision 16 September 2002

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S P Hardy	Dibbs Barker Gosling
For the Respondent	Mr T Gyorffy	K Robertson, Solicitor for Public Prosecutions

HIS HONOUR:

On 17 January 2001, David Francis Goodey was charged that on 4 October 2000, after having been required to undergo a preliminary breath test in accordance with s.53 of the Road Safety Act 1986 and the test in the opinion of the member of the police force in whose presence it was made indicated that his blood contained alcohol he was then further required to furnish a sample of breath for analysis by a breath analysing instrument pursuant to s.55(1) of the Act, did refuse to comply with such requirement prior to three hours elapsing from the driving of a motor vehicle.

The charge was heard before the Magistrates' Court on 6 December 2001 by Mr Barberio, Magistrate. The evidence disclosed, and the magistrate accepted, that in fact Mr Goodey had complied with s.55(1) of the Road Safety Act in that he had provided a sample of breath for analysis when requested to do so, but that the police officer had proceeded to use the procedure authorised by s.55(2A) of the Act when the initial sample of breath did not produce a result.

Section 55(2A) is a section, which was inserted by amendment, to permit the breath analysis operator to seek further samples of the breath of a person who is being tested when the initial sample does not produce the desired result; that is to say, does not produce a sample capable of being measured or, for some other reason, a measurement is not obtained. The reasons which can give rise to the use of s.55(2A) are set out in that sub-section, and they are that the breath analysing instrument is incapable of measuring the concentration of alcohol present in the sample, or each of the samples, previously furnished in grams per 100 millilitres of blood because the amount of sample furnished was insufficient or because of a power failure or malfunctioning of the instrument or for any other reason whatsoever. In essence, the section is designed to prevent someone being able to produce an inconclusive or inadequate sample and then claim to have complied with the Act.

The problem the prosecution faced in this case was that it charged Mr Goodey with a failure to comply with s.55(1). It is not contested that in fact he did provide the initial sample. The prosecution's complaint is that he did not comply with the further requirements which were, in this particular case, required of him by s.55(2A). Counsel…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Goodey v Clarke

Details

AGLC: Goodey v Clarke [2002] VSC 246
Case: [2002] VSC 246
Decision Date: 12 June 2002

CaseChat Overview and Summary

David Goodey appealed against a conviction by Anthony Clarke, a magistrate, under s.49(1)(e) of the Road Safety Act 1986 for refusing to comply with a requirement under s.55(1) or s.55(2A) of that Act. The case was heard by Bongiorno J in the Supreme Court of Victoria. The appeal raised three questions of law. The first was whether the magistrate erred in holding that an offence under s.55(1) was a cognate offence with that of refusing to comply with a requirement under s.55(2A). The second was whether the magistrate erred in allowing the charge to be amended after more than 12 months had passed since the date of the offence. The third was whether the magistrate erred in refusing to allow counsel for the defendant to cross-examine the informant on the question of whether or not the breath analysing machine used on the occasion was capable of measuring the concentration of alcohol present in the defendant's breath.

Bongiorno J held that the appeal should be upheld. The magistrate erred in allowing the charge to be amended. The amendment was made at a time when a new charge under s.55(2A) could not have been laid. It would have been out of time. The amendment should not have been allowed. To have allowed it was an error of law. The magistrate also erred in holding that an offence under s.55(1) was a cognate offence with that of refusing to comply with a requirement under s.55(2A). The court found that s.55(1) and s.55(2A) do in fact create separate offences: in the first, a failure to provide a breath sample simpliciter and, in the second, a failure to provide further samples in the circumstances provided by s.55(2A).

The appeal was upheld. The order of the magistrate convicting the appellant was quashed and in lieu thereof the information dated 17 January 2001 was dismissed. The Chief Commissioner of Police was ordered to pay the costs of the appellant in the Magistrates' Court in so far as they relate to the charge which has now been dismissed and that the Chief Commissioner of Police pay the appellant's costs in this court.

Orders